| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 140 |
| Hearing date | 20 Sep 2011 |
| Determination date | 23 September 2011 |
| Member | M B Loftus |
| Representation | R Harris ; D Hudson |
| Location | Dunedin |
| Parties | Benjamin v European Woodworks Ltd t/a Eurotech Windoors |
| Summary | JURISDICTION – Whether applicant employee – Applicant claimed unjustifiably dismissed by respondent when told could not start work in accordance with accepted employment offer – Respondent claimed did not offer applicant employment – Applicant applied for respondent’s advertised position – Respondent claimed chose another candidate for position but as successful candidate could not start immediately offered applicant work as sub contractor for two to three weeks – Applicant claimed told by respondent to come in for interview – Applicant claimed at interview respondent’s director (“R”) said applicant had position – Applicant claimed parties agreed on hourly pay on contractor basis and when applicant told R sought work as employee R said believed workload would increase but respondent needed to wait until it did – Applicant accepted was no discussion about commencement date or wages payable as employee – R claimed parties agreed applicant would be on-call contractor, did not discuss work after three week period ended and made clear to applicant R could not offer employment – Another director of respondent agreed with R’s evidence – Applicant started as contractor following day and asked if could complete spray painting job – R claimed allowed applicant to do job as although engaged applicant to prepare joinery considered applicant on trial – Applicant claimed painting one of tasks engaged to perform – Parties accepted applicant worked for respondent for three weeks as contractor – R claimed on final day thanked applicant for completed work and said would contact applicant if had further work available – Applicant claimed work not completed but decided to raise concerns when came to work next week – Applicant called respondent over next few days and co-worker (“T”) told applicant no work available each time – Applicant denied R said applicant would be considered as contractor if further work available and claimed was told would no longer be engaged as result of “pestering” of T – Authority found no evidence parties discussed or agreed to remuneration – Found normal trappings of concluded employment totally absent – Found clear respondent did not seek or intend to engage another employee – Found desire to be employed did not mean parties had concluded agreement - Found applicant not employed by respondent – Application dismissed |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s5;ERA s6 |
| Cases Cited | Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand Ltd [2002] 2 NZLR 433;Kernohan v Auckland University of Technology unreported, J Scott, 7 May 2003, AA 133/03 |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Christchurch_140.pdf [pdf 45 KB] |